KEVIN H. SHARP, District Judge.
This is a defamation action arising from the production and airing of a television program ("the Program") titled "Conspiracy." The Program was produced by Defendant Wild Eyes Productions, Inc. ("Wild Eyes") for the series, "The Squad: Prison Police," and aired by Defendant A & E Television Networks, LLC ("A & E"). In the Program, Plaintiff Marlorita Battle is unwittingly filmed while vising her husband at the Riverbend Maximum Security Institution ("Riverbend") in Nashville, Tennessee.
Plaintiff has filed an Amended Complaint in which she sets forth claims against Defendants for "defamation/false light" (Count I) and the intentional infliction of emotional distress (Count II).
As a general rule, in considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must take "all well-pleaded material allegations of the pleadings" as true. Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir.2010). The factual allegations in the complaint "need to be sufficient to give notice to the defendant as to what claims are alleged, and the plaintiff must plead
As noted, the Amended Complaint contains claims for defamation/false light, and the intentional infliction of emotional distress. The Court sets forth its analysis regarding the claims under separate sub-headings.
A claim for common law defamation may be based upon written (libel) or spoken (slander) words. Quality Auto Parts Co., Inc. v. Bluff City Buick Co., 876 S.W.2d 818, 820 (Tenn.1994). "The basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person's character and reputation." Id. To establish defamation, "Plaintiff must prove that (1) a party published a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement." Shamblin v. Martinez, 2011 WL 1420896 at *3 (Tenn.Ct.App. April 13, 2011).
A claim for defamation often overlaps with a claim for false light invasion of privacy, but the Tennessee Supreme Court has determined that "the differences between the two torts warrant their separate recognition." West v. Media Gen'l Convergence, Inc., 53 S.W.3d 640, 645 (Tenn.2001). To establish a claim for the false light invasion of privacy, a plaintiff must prove "that a defendant published a matter concerning the plaintiff, placing the plaintiff before the public in a false light which is highly offensive to a reasonable person, and the defendant had knowledge that his statement was false or acted recklessly with regard to the falsity of the publicized statement." Gard v. Harris, 2010 WL 844810 (Tenn.Ct.App.2010) (citing, West, 53 S.W.3d at 643-44).
Although "the common law has afforded a cause of action for damage to a person's reputation by the publication of false and defamatory statements" since at least "the latter half of the 16th century," Milkovich v. Lorain Journal Co., 497 U.S. 1, 11, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), the Supreme Court has imposed certain constitutional limits on state law defamation claims because the First Amendment protects society's interest in "uninhibited, robust, and wide-open debate," and "[w]hatever is added to the field of libel [and slander] is taken from the field of free debate.'" New York Times Co. v. Sullivan, 376 U.S. 254, 270 & 272, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Such limitations were summarized by the Supreme Court as follows:
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (internal citations omitted).
In her filings, Plaintiff spends some time arguing that she is a private figure and that the subject of the Program did not involve a matter of public concern. In response to those arguments, Defendants assert those issues are not relevant at this time. (Docket No. 26 at 10). Instead, Defendants argue that they "have asked that the Court dismiss this case based on a single issue of law, and that is that the Documentary Program is not capable of a defamatory meaning." (Id. at 9-10).
In Tennessee, the issue of whether a statement is capable of a defamatory meaning is a question of law to be decided by the court. Memphis Publ'g Co. v. Nichols, 569 S.W.2d 412, 419 (Tenn.1978) (citations omitted). If the court determines that the statement or communication is not defamatory, then dismissal of the action is appropriate; otherwise, it is for the jury to determine whether the statement was understood by its intended audience to be defamatory. See, id.; Forsman v. Rouse, 2008 WL 2437644 at *3 (M.D.Tenn.2008).
In determining whether a statement is capable of a defamatory meaning, the "[a]llegedly defamatory statements should be judged within the context in which they are made," and given their usual meaning, "as a person of ordinary intelligence would understand them in light of the surrounding circumstances." Revis v. McClean, 31 S.W.3d 250, 253 (Tenn.Ct.App.2000).
Typically, "`[i]t is a relatively simple, straightforward task for a plaintiff to identify with absolute precision the exact words that are alleged to be defamatory.'" West v. Media Gen. Operations, Inc., 120 Fed.Appx. 601, 615 (6th Cir.2005) (quoting, West v. Media Gen. Operations, Inc., 250 F.Supp.2d 923, 932 (E.D.Tenn.2002)). "`However, in cases involving television broadcasts with a stream of audio and visual components interacting with each other, the plaintiff's burden of identifying allegedly defamatory words with absolute precision and exactitude is much more complicated and poses an especially difficult problem.'" Id. In an analysis with which the Sixth Circuit agreed, the district court in West explained the difficulties inherent in establishing defamation in cases involving television programs, writing:
Id. at 615 (quoting, West, 250 F.Supp.2d at 932-34) (internal citation omitted).
Even though this matter is before the Court on a Motion to Dismiss, the parties agree that the Court should independently review the Program in its entirety to determine whether it is capable of a defamatory meaning.
The 25-minute Program is titled "Conspiracy," with roughly the first third of the Program involving allegations that Plaintiff may have conspired with her husband to bring drugs into Riverbend. It begins with the written statement: "The following shows real people facing criminal charges. They are presumed innocent until proven guilty." After a notation that the show contains graphic material, a Tennessee Department of Corrections Special Agent (later identified as John Fisher) appears on screen and says, "I think we got her ... inmates have found a weakness in our security." This is followed by still shots of what appears to be marijuana, cocaine and crack.
The screen next indicates that it is "Saturday, September 12," and shows a panoramic view of the imposing, castle-like fortress of the "Tennessee Prison."
The screen next indicates it is 2:35 in the "Situation Control Room," and Agent Fisher is shown operating a joystick which controls the cameras in the visitation area. Agent Fisher focuses the camera on Plaintiff and observes, "yea, that's her right here." As Plaintiff's husband approaches her and their toddler child, Agent Fisher states, "we've identified the female subject and inmate," and this is followed by a mugshot of Plaintiff's husband. Agent Fisher then appears on the screen and states, "these things typically happen early on in the visitation when everyone is busy." The segment then shows Plaintiff and her husband sitting next to each other, with their child in the husband's lap. The husband stands, places the toddler in a chair, and Agent Fisher observes that it "don't look like its been done yet, so now its just a waiting game."
The Program next provides basic background about the problem of drugs in prison. Officers are shown searching areas in the prison, and inmates are shown discussing the ready availability of drugs.
Filming then shifts back to the visiting area, where Agent Fisher is shown, once again, utilizing the joystick to focus the camera on Plaintiff and her husband. Initially, the couple embraces, and they are then shown walking side-by-side. The camera zooms to the Plaintiff's lower back. Plaintiff's husband's hand is moving around the waist band of Plaintiff's pants, at which point Agent Fisher mutters, "uhm." Plaintiff then walks away from her husband and towards the bathroom, which prompts Agent Fischer to state, "hold on now, she's going to the bathroom. Typically, these women hide stuff up in their vaginal cavity and then go to the restroom to take it out. Now we are starting to get to the nitty gritty."
The next scene is a picture of the bathroom doors in the visiting area. When Plaintiff exits from the bathroom within what appears to be seconds after her entry, Agent Fisher says, "there she is right there. See how fast she went in there. She didn't have time to pee. She went in and came right back out." Agent Fisher focuses the camera on Plaintiff who is sitting next to her husband and holding something in her hand. The couple then begin kissing, and while they do so, a noise, sounding like a cymbal clashing, is played in the background. The couple kiss again for a longer period of time while cymbal-like noises are again played in the background. Agent Fisher states "some * * * * just happened. I think we got 'em, I think we got them." Agent Foster rapidly walks to a window overlooking the visiting room where Plaintiff's husband is shown being escorted out by a correctional officer. The written statement "a strip-search of the suspect did not reveal any smuggled drugs" is flashed upon the screen, and then Plaintiff's husband is shown being taken to a "dry cell"
The Program then skips to the following day. Plaintiff's husband is released after being in the "dry cell" after twenty-four hours, during which time, he passed no
The remainder of the Program focuses on the search for contraband in the prison, and the allegation that a correctional officer has been introducing drugs and cellphones into the prison. After a sting operation, the officer is arrested at a nearby shopping plaza. During the end credits, Agent Fisher observes, "if you are dirty, if you are smuggling in contraband, drugs, cellphones, tobacco, then we're going to catch you. We might not get you today, maybe next week, next month, next year, but eventually, we're going to catch up with you, and we're gonna get you. That's what we do."
Defendants assert that dismissal is required because the Program "does not communicate the `meaning that the Plaintiff attempts to place on it,'" in that the Program "does not state that a crime was determined by the State Prison special police force to have been committed during Plaintiff's visit to her husband." (Docket No. 13 at 9, emphasis in original). Instead, according to Defendants, the Program "accurately reports the result of an investigation, which was that public officials suspected that Plaintiff might be smuggling drugs, that her observed behavior and information received by those state officers led to further investigative efforts, and that drugs were not found on that visit." (Id., emphasis in original).
"A trial court is permitted to determine that a statement is not defamatory as a matter of law ... only when it can say that the statement is not reasonably capable of any defamatory meaning and cannot be reasonably understood in any defamatory sense." Biltcliffe v. Hailey's Harbor, Inc., 2005 WL 2860164 at *4 (Tenn.Ct.App. Oct. 27, 2005). Having reviewed the Program in its entirety, the Court finds that it is, in fact, capable of a defamatory meaning and could be viewed by a reasonable jury as holding Plaintiff in a false light.
The clear implication from the opening is that the show is about a conspiracy to bring drugs into Riverbend. This begins with Agent Fisher's observation that officers are onto an inmate's wife who is supposedly bringing drugs into the prison. The focus of the first third of the program is almost entirely on Plaintiff and her interactions with her husband. She is specifically identified as the one who is thought to be bringing drugs to her husband.
Despite claiming that the only legal issue before the Court at this time is whether the Program is capable of a defamatory meaning, Defendants argue that, under Tennessee law, a publication need only be substantially true to defeat a defamation claim, and where a speaker can only be understood as expressing an opinion, theory or interpretation, the statement is not actionable. (Id. at 11 & 12, citing, Stones River Motors, 651 S.W.2d at 719 and Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir.1993)). For any of a number of reasons, such arguments are not for the Court to decide at this juncture and on this limited record.
First, whether a statement is true or not is generally a matter for the jury. As has been explained by the Tennessee Court of Appeals:
Biltcliffe, 2005 WL 2860164 at **3-5. Moreover, "[w]ords which are substantially true can nevertheless convey a false meaning whether intended by the speaker or not." Pate v. Service Merchandise, Inc., 959 S.W.2d 569, 574 (Tenn.Ct.App.1996). "The proper question is whether the meaning reasonably conveyed by the published words is reasonably understood in a defamatory sense by the reader or listener," id., and the Court finds that the Program is capable of a defamatory meaning and placing Plaintiff in a false light.
Second, "[t]he United States Supreme Court and Tennessee courts have recognized that opinions are not automatically protected by the United States Constitution." Malmquist v. Hearst Corp., 2010 WL 1257800 at *3 (W.D.Tenn.2010) (citing, Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1; Revis v. McClean, 31 S.W.3d 250 (Tenn.Ct.App. 2000)). After all, "expressions of `opinion' may often imply an assertion of objective fact":
Milkovich, 497 U.S. at 18-19, 110 S.Ct. 2695. Thus, even if Agent Fisher's various statements are said to be mere opinions, the Court is not in any position to determine whether such opinions are erroneous, incorrect or incomplete.
Third, and perhaps most importantly, Defendants argue as if the Program was a realtime reporting of events as they happened, when, in fact, it is clear from a review that the Program was highly edited. The difference between live reporting and the airing of canned episodes can be important because "defamation may be proven by establishing that a party published a false and defaming statement with reckless disregard for the truth or with negligence in failing to ascertain the truth." Sullivan v. Baptist Mem. Hosp., 995 S.W.2d 569, 575 (Tenn.1999). "The appropriate question to be determined from a preponderance of the evidence is whether [Defendants] exercised reasonable care and caution in checking on the truth or falsity and the defamatory character of the communication before publishing it," Woodruff v. Ohman, 166 Fed.Appx. 212, 216 (6th Cir.2006) (citation omitted), and that is something which cannot be determined merely by looking at the pleadings, or reviewing a copy of the Program.
In sum, when the court is called upon to determine whether a statement is capable of carrying a defamatory meaning, "[t]he court does not decide whether a statement was actually defamatory, but only whether a reasonable fact-finder could interpret it as containing false assertions of fact." Ogle v. Hocker, 279 Fed.Appx. 391, 397 (6th Cir.2008) (citing, Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991)). Because the Court finds that a reasonable jury could conclude that the Program leveled false and defamatory accusations against Plaintiff, Defendants request to dismiss Plaintiff's defamation/false light claim will be denied.
In her Amended Complaint, Plaintiff alleges that Defendants' actions in filming and airing the Program constituted the intentional infliction of emotional distress. Specifically, Plaintiff alleges in Count II:
(Docket No. 28 at ¶¶ 50-55). In response to Defendants' Motion to Dismiss, Plaintiff makes no cogent arguments, nor cites any persuasive authority which supports her intentional infliction of emotional distress claim.
Since the tort was first recognized in Tennessee in Medlin v. Allied Inv. Co., 217 Tenn. 469, 398 S.W.2d 270, 274 (1966), the Tennessee Supreme Court has determined that claims for the intentional infliction of emotional distress are viable only upon a showing of truly outrageous and intolerable conduct. Miller v. Willbanks, 8 S.W.3d 607, 614 (Tenn.1999). "Although no perfect legal standard exists for determining whether particular conduct is so intolerable as to be tortious," the Tennessee Supreme Court "has adopted and applied the high threshold standard described in the Restatement (Second) of Torts":
Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997) (quoting, RESTATEMENT (SECOND) OF TORTS § 46 comment d (1965)). "[I]t is the court's duty in the first instance to apply that standard and determine `whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery[.]'" Id. (quoting, Medlin, 398 S.W.2d at 274).
Plaintiff's intentional infliction of emotional distress claim hinges on the Program's purported portrayal of her as a drug dealer. However, even if some of Plaintiff's family and friends viewed the Program in that light, Defendants' action in producing and airing the program is not something "beyond all bounds of decency," and "utterly intolerable in a civilized community," because the Program could also be understood as suggesting that the allegations that Plaintiff was bringing drugs into Riverbend was proven to be false. Accordingly, the Court finds, as a matter of law, that Plaintiff's allegations, even accepted as true, would not lead an average person to exclaim that Defendants' actions in producing and airing the Program were outrageous.
On the basis of the foregoing, Plaintiff's Motion for Voluntary Dismissal of Count II (Docket No. 18) will be granted and her claim for defamation per se will be dismissed. Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Docket No. 25) will be granted with respect to Plaintiff's claim for the intentional infliction of emotional distress, but denied with respect her defamation/false light claim. Finally, Defendants' Motion to Dismiss Plaintiff's original Complaint (Docket No. 12) will be denied as moot.